SHARMA v Minister for Immigration

[2015] FCCA 1849

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1849

Catchwords:
MIGRATION – Application for extension of time to bring application to the Federal Circuit Court – applicant seeking to review decision of Migration Review Tribunal – applicant seeking consideration of circumstances in which his application for a further visa was made – first respondent submitting that such circumstances are irrelevant – facts now asserted by applicant inconsistent with what he told the Tribunal – applicant seeking to construe regulation so as to add a further visa class – regulation clear on its face – criticisms of Tribunal’s decision not made out – application dismissed. 

Legislation:  
Migration Act 1958, s.477

Migration Regulations 1994, cl.572.11(3)

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906
Mohammed v Minister for Immigration and Border Protection [2015] FCA 184

Applicant: ROHIT SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 554 of 2014

Judgment of: Judge Burchardt

Hearing dates: 2 & 3 June 2015

Date of Last Submission: 3 June 2015

Delivered at: Melbourne

Delivered on: 23 July 2015

REPRESENTATION

Counsel for the Applicant: Mr Cadman

Solicitors for the Applicant: Vernon da Gama & Associates

Counsel for the First Respondent: Mr Knowles

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Leave is granted to the applicant to amend the amended Initiating Application filed 28 April 2015 by adding Ground 3 as articulated in the oral application made before the Court. 

2. The applicant’s application pursuant to s.477 of the Migration Act 1958 to extend time to apply to the Federal Circuit Court is dismissed. 

3. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 554 of 2014

ROHIT SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended application, filed 28 April 2015, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”), dated 5 February 2014.  The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa. 

2. The application is conceded to have been brought 10 days out of time, and the applicant therefore seeks that the time for the making of the application be extended pursuant to s.477 of the Migration Act 1958 (“the Act”).

3. The amended application contains two grounds, to which counsel sought at the hearing before this Court to add a third ground. The first ground turns upon the construction of cl.572.211(3) of the Migration Regulations 1994 (“the Regulations”). The second ground asserts a failure on the part of the Tribunal to take into account relevant information, namely, the course of events by which the applicant says he came to file his original application. The third ground (the ground sought to be added) asserts that, by attending on 14 October 2013 at the first respondent’s Departmental offices, the applicant, in fact, filed an application within time, which was perfected subsequently.

4. The respondent opposes the application to amend the grounds by adding ground 3, both on the footing that it was made very late and lacked merit.

5. For the reasons that follow, I think the first respondent’s criticisms of the applicant’s case are made out, and it follows that the application will be dismissed.

Uncontroversial Factual Background

1. From the materials filed by the parties, it is uncontroversial that the applicant, who was born on 27 December 1986, first arrived in Australia in 2006, on a Student (Temporary) visa, valid until 2011.  On 12 April 2012, he was granted a Subclass 485 visa, which was valid until 12 October 2013.

2. The circumstances surrounding the cessation of that visa, and the applicant’s failure to obtain the further visa for which he ultimately applied are, to an extent, controversial.  I will return to this aspect of the matter when I come to grounds 2 and 3.

The Application for an Extension of Time

1. The matters supporting the application for an extension of time (leaving aside the asserted merit of the application itself) are set out in the original application, filed 28 March 2014.  It is asserted that:

   “1.    Without the benefit of legal advise (sic), the Applicant sought Ministerial intervention on 14 March 2014, requesting that a student visa be granted to the Applicant.

   2.    It was only on 26 March 2014, that the Applicant was able to obtain legal advise (sic) by which he was informed that there are time limits for an application being filed in the Federal Circuit Court for the judicial review of the decision of the Migration Review Tribunal, and that an application can be made for the extension of time.”

2. These matters are further deposed to by the applicant in an affidavit, filed 28 April 2015, at paragraph 3 and following.  The applicant’s written submissions assert, at paragraph 16:

   “On whether the extension of time should be granted, it is submitted that the applicant’s affidavits in support, provide an acceptable explanation for the delay and for the reasons below, there are also reasonable prospects of the applicant succeeding in this proceeding.”

3. The first respondent opposes the extension of time.  So far as the merits of the case are concerned, these will be dealt with below.  So far as the explanation for the delay is concerned, it is submitted that there is no satisfactory explanation.  In my view, the characterisation of the explanation, set out at paragraph 15 of the first respondent’s written submissions, is essentially correct.  The explanation advanced by the applicant, as to his failure to apply within time, is an “asserted failure to obtain legal advice about time limits relating to judicial review”.

4. The written submissions refer to authority and, in this regard, I would refer to what was said by Foster J in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [37]-[38], where his Honour said:

   “37.  When dealing with these types of matters, the courts have developed principles which govern the consideration of whether an extension of time should be granted.  In essence, the courts look at two questions: first, whether there is a satisfactory explanation for the delay; and, second, whether, having regard to the applicant’s prospects on the judicial review application, the interests of justice require that an extension of time should be granted. 

   38.  In the present case, there is no satisfactory explanation for the delay.  Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.”

5. The delay in that case was almost eight months, a substantially greater period than in this case, but, in my view, the first respondent’s submission is correct, and the explanation advanced is not satisfactory.  This, of course, is not in any sense determinative, but it does weigh against the grant of the extension of time.

6. At this stage, therefore, it is appropriate in the circumstances of this case to move to consider the grounds of application themselves.

Ground 1 - The Tribunal’s decision to affirm the decision not to grant the applicant’s student visa was made without the Tribunal having complied with a statutory condition essential to the validity of the decision,  alternatively, it failed to take into account relevant information, and is therefore affected by jurisdictional error.

1. I do not set out the particulars to this ground as they are relatively extensive. Put shortly, it is submitted that the Tribunal fell into error by failing to consider whether the applicant’s application was made within 28 days after the date upon which his last previous substantive visa expired. In substance, what is submitted is that cl.572.221(3) of the Regulations should be read to include a reference to subclass 485.

2. It should be noted that it is common cause that in 2007 the 15 subclasses under the General Skilled Migration program collapsed to 9, which included the Graduate ‑ Skilled (subclass 497) visa, which was replaced by a new subclass structure, being the Skilled ‑ Graduate (subclass 485) visa. (See applicant’s written submissions, paragraph 22, not put in issue by the first respondent). Nonetheless, there are a number of points to be made about cl.572.221 of Schedule 2 to the Regulations. By subclause (2), a criterion is established whereby the applicant meets the criterion if, at the time of application, they hold of a number of specified visas. They include a Student (Temporary) (Class TU) visa. No other sort of student visa is so specified.

3. At subclause (3), a further criterion is established, whereby the applicant will be successful if they no longer hold a substantive visa, but their last substantive visa was relevantly (cl.572.211(3)(v)) a subclass 497 (Graduate – Skilled) visa.  The application must be made within 28 days after the date upon which the last substantive visa ceased to be in effect (cl.572.211(3)(c)).

4. The gravamen of the applicant’s case is set out at paragraphs 20 and 21, where it is asserted:

   “20.  The Tribunal did not consider whether this case the 28 day grace period pursuant to sub-clause 572.211(3)(b)(v).  The Regulation refers to subclass 497 which was replaced by subclass 485 from 1 September 2007 and in its relevant form from 23 March 2013. 

   21.  It is submitted that the applicant was within time if it was Parliament’s intention to cancel the subclass 497 visa and replace it with the new subclass 485.  In any event, the Tribunal did not take this into account.”

5. Essentially, what the applicant’s written and oral submissions amount to is the proposition that the failure to replace the reference to the Subclass 497 visa in sub-regulation 3(v) with the subsequently introduced Subclass 485 visa was a mistake that this Court should, in effect, remedy.  Reliance was sought to be placed upon the explanatory memorandum to the amendment, which I have marked as MFI-1.  It is fair to say that the memorandum asserts, inter alia:

   “Subclass 485 is a temporary visa that from 1 September 2007 replaces Subclass 497 (Graduate‑Skilled), for which amendments made by these Regulations prevent further applications by persons seeking to satisfy the primary criteria on or after 1 September 2007.”

6. It should be noted, however, that by subclause 2(d) of the clause, there is express reference to the holders of various subclasses of visa who are said, by holding the visa, to satisfy the criterion, including the Subclass 485 and 497 visas.

7. As I pointed out to counsel during oral submissions, what the applicant is really seeking is not the substitution of Subclass 485, in subclause 3(v), but rather, its addition. 

8. Both sides referred the Court to authority as to the construction of legislation and it was agreed between them that one starts with what the plurality of the High Court said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]:

   “This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.  Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.  The language which has actually been employed in the text of legislation is the surest guide to legislative intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief⁷³ it is seeking to remedy.”

9. I also note the observations of the High Court in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [31] where the High Court said:

   “As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation”.  Statements as to legislative intention made in explanatory memoranda or by ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.”

10. Here, in my view, the conclusion can be shortly stated.  Despite the addition of a new Subclass 485 visa in 2007, the 28-day grace period (as both counsel referred to it) was extended only to the visa that ceased to exist in 2007, namely the Subclass 497 visa.

11. There is no good reason or necessary reason to import into the regulation something that is clearly not there. Various explanations might underpin why Parliament chose to enact the regulation in the form that it did.  Counsel for the first respondent posited a plausible basis upon which one might assume that Parliament had done what it set out to do, namely to cease Subclass 497 visas but provide a grace period for those that were going to expire but to remove this avenue for others.

12. There is no need for this Court to seek to form a conclusion as to why Parliament did what it did.  What it did was not in any way equivocal.  The 28-day grace period applies to Subclass 497 visas but not to Subclass 485 visas notwithstanding that Subclass 485 visas might be said to have replaced Subclass 497 visas.  It should be noted that the visas are by no means entirely coextensive or identical as their titles indicate.

13. It follows that the Tribunal not only did not misconstrue the regulation as the applicant asserts, but it did not fall into jurisdictional error in failing to do so.

Ground 2 - The Tribunal failed to take into account relevant information and is therefore affected by jurisdictional error

1. Once again, the particulars to this ground are lengthy and set out the various factual assertions about the way in which the applicant came to file his application, which are at the heart of this aspect of the matter.  It should be noted that a claim for damages articulated in the original application was expressly abandoned by counsel for the applicant at trial.

2. What is asserted by the applicant under this ground essentially is that the Tribunal failed properly to consider, as it should have done, the factual basis upon which the applicant sought to file his application prior to the expiry of his previous substantive Subclass 485 visa.

3. In the applicant’s first affidavit filed 28 March 2014, the applicant deposed to his previous Subclass 485 visa due to expire on 12 October 2013.  He deposed at paragraph 11 of his affidavit that:

   “For that purpose, I attempted to submit and lodge an online application for a student visa, on 8 October 2013, 10 October 2013 and 11 October 2013.  All three attempts made by me were unsuccessful as the messages in response to my online application were

   "you do not hold a prerequisite visa to enable use of this service.  Please contact a local office of this department".”

4. The applicant went on to say that he did not know what the word "prerequisite" meant but that, in fact, he now understood that he did have a temporary residency visa which would have enabled him to apply for a subsequent student visa.  The applicant went on to depose that because his visa came to an end on 12 October 2013, which was a Saturday, he approached the Department on Monday, 14 October 2013 to enable him to get a student visa.  Relevantly, he deposed that he spoke to an officer of the first respondent on that day who, having been the computer system (paragraph 13):

   “…confirmed that I was eligible to apply for a fresh student visa that day and asked me if I had with me further documentation to support my application.”

5. The applicant deposed to having the relevant documents available but was told that he would have to apply by way of a paper application rather than by way of an online application.  He deposed to requesting a paper application and received a response that it was not available but was available online.  The applicant deposed that he was told that he could complete the application and deliver it to the first respondent either in person or by post.

6. The applicant deposed to returning home, downloading the application and speaking again to the first respondent's departmental officers.  He had deposed to being told that the application for the grant of the student visa had to be submitted in its original form either by handing it to the first respondent's office or by posting it to the first respondent.  He went on to depose at paragraph 17:

   “I then immediately returned to the First Respondent's office at 2A Lonsdale Street, Melbourne at 4.15pm that day as hurriedly as possible, but could not lodge the application for the grant of a student visa (“the application”), as the office of the First Respondent had closed at 4:00pm.  I then posted out the application to the First Respondent the very next day.”

7. The applicant went on to depose that he was notified on 29 October 2013 that his application was rejected.

8. The applicant filed two affidavits on 28 April 2014.  The shorter of those two affidavits which runs to 21 paragraphs and has no annexures, adds little to the affidavit material I have just traversed.  It does confirm at paragraph 12 that the applicant was given a bridging visa on 12 October 2013.  It does not otherwise, in my view, add anything material.

9. The longer of the two affidavits filed 28 April 2015 has a slight difference in the narrative.  At paragraph 3(c) the applicant deposed:

   “On Monday, 14 October 2013, I attended the office of the Department and was told that I could still apply for my student visa and could do so either by post or in person.  I had all the documents with me, including a certificate of enrolment.  I just needed to complete the application form.  I went home to complete the form.  As it was about 2:00pm, and the nearest office was about an hour away, I decided to post the application, as suggested by the officer.”

10. That, to my way of thinking, is a rather different factual narrative to the one earlier asserted in the other two affidavits.

11. The affidavit goes on to depose to the applicant’s enquiries on 16, 19 and 22 October 2013 about the state of his application, but ultimately on 28 October 2013 he was notified that his application was rejected.

12. The second ground of application pressed by the applicant, essentially, amounts to the proposition set out at paragraph 42 of the applicant’s written submissions that, “The Tribunal failed to consider the applicant’s claim that the Departmental officer gave him incorrect information.”  In part, this aspect of the applicant’s claims involves a measure of factual controversy.  The applicant had asserted, before the Tribunal, that on 8, 10 and 11 October 2013 he had attempted to make an application for the grant of a student visa and received an automated reply:

    “you do not hold a prerequisite visa to enable use of this service.  Please contact a local office of this department.”

13. The applicant’s written submissions assert that he attended an office of the Department on Monday, 14 October 2013 at around 10:00 am and was interviewed at about 12:30 pm.  This asserted that the Department informed the applicant that there were no paper applications available and that he had time to file the application so that he could download it online, fill it in and either hand deliver it in person or send it via post.  The written submissions assert that the applicant went home to print off the application or form and returned to the Departmental office at 4:15 pm.  It was closed so he posted the application the next day.  This recitation is largely consistent with the applicant’s affidavit evidence.

1. The Tribunal noted at paragraphs 13-17 (CB116-117) the applicant’s recitation of the history.  This included three screenshots the applicant claimed as evidence of him attempting to lodge online on 8, 10 and 11 October 2013.  The Tribunal said at paragraphs 13-17:

   “13.  …I regard this evidence to be dubious in quality, as he has provided no corroboration from the friend.  However, even if I accept it as genuine I do not regard it as assisting him.

   14.  He claims that he received errors when attempting to lodge on these occasions.  I do not accept the argument, however, that these constituted valid lodgement attempts which were inhibited for technical reasons as in each of the three screenshots he produced, the error message he received was:

   You do not hold a valid prerequisite visa to enable use of this service.  Please contact a local office of this Department.

   15.  The applicant claims that he did not understand what the word “prerequisite” meant.  I do not accept that he was unable to find out what it meant.  As I observed at the hearing, his English language ability is good.  I find that the applicant was on notice prior to the expiry date of his last substantive visa that he was unable to use the Department’s electronic lodgement facility and that he needed to take other steps to lodge his application in time. 

   16.  The applicant claimed that the 11^th  and 12^th October 2013 were a Saturday and a Sunday so he could not lodge his application at an office of the Department.  The applicant further claims that he did visit an office of the Department.  He states that he did this on the 13^th or 14^th October and he was told at the counter he could lodge his application.  In fact, as I raised with the applicant at the hearing, after consulting a calendar I observed that the 11^th and 12^th October 2013 were a Friday and a Saturday.  I suggested to the applicant that if he went to an office of the Department on the following Monday he may well have been told that he could still lodge that day, as the last day for lodging fell on a day that was not a business day.

   17.  The applicant did not really cavil with this suggestion other than to say he was told that he could apply two ways, either by post or in person.  The applicant said he went home, completed the application form, by which time it was around 2pm, and as the nearest office of the Department was about one hour’s travel, he decided to post it.”

2. The applicant sought to rely upon MFI-2, a record from the Department itself.  This document dated 14 October 2013 records the expiry of the applicant’s 485 visa on 12 October 2013.  It notes the grant of a bridging visa for 7 days, and the imposition of certain conditions including Condition “8508 MAKE APPLICATION BY 22/10/2013”.

3. Counsel for the applicant submitted that this supported the proposition that the applicant was told he could make an application until 22 October 2013. 

4. Counsel for the first respondent submitted that the applicant’s three affidavits were inadmissible as they were irrelevant because the circumstances of the applicant’s application themselves were irrelevant.  It was submitted that the evidence could not effect the Tribunal’s decision as it was not relevant to any visa criterion.

5. Counsel submitted that there was no challenge by the applicant to what the Tribunal recorded the applicant as saying.  Counsel noted that the applicant had provided to the Tribunal the account set out above as to his decision to post his application form.  It was pointed out that this was inconsistent with what is now asserted.  I accept that submission.

6. I further note that the actual application received by the Department on 18 October 2013 is dated 15 October 2013 (see CB20).

7. Further, as counsel for the first respondent submitted, MFI-2 is a file note which records a conversation, but it contains nothing about advice as to posting. 

8. Counsel submitted that the Tribunal’s task was to consider the delegate’s exercise of power and to re-exercise it.  It was submitted that the applicant has not shown how the circumstances of his application went to satisfy the visa criteria.

9. Finally, it was submitted that in any event the Tribunal did consider the applicant’s assertions as to what had occurred to him at paragraphs 13-20 (CB116-117).

10. Put shortly I think that the first respondent’s submissions are correct.  In the first place the account given by the applicant to the Tribunal, and there has been no endeavour to provide transcript to suggest that what the Tribunal recorded was incorrect, shows that the applicant decided to post his application and, therefore, made no attempt to lodge it on 14 October 2015.  Indeed, the document itself is dated 15 October 2013, and was received on 18 October 2013. 

11. It is not correct to say however, that the particular circumstances that pertained in respect of the applicant’s application were incapable of being relevant.  If, as appears to be conceded, 14 October 2013 was the last day upon which the applicant could have applied for a student visa, then plainly some difficulty arising out of erroneous information provided by the Department might be relevant.  In submissions, counsel eschewed any debate about the extent to which it is possible, so to speak, to estop a statute, but I can accept that at least notionally the point might be arguable in some way.

12. The difficulty the applicant faces is that the facts now asserted are not the facts as they were found by the Tribunal.  Moreover, the Tribunal did not fail to consider the applicant’s circumstances, but rather addressed them in detail.  As the Tribunal pointed out at paragraph 19 the application is lodged at the time of receipt by an office of the Department, not the time of dispatch. 

13. Furthermore, as counsel for the first respondent pointed out, in relation to Ground 3, the application must be accompanied by the relevant fee, which was plainly not the case here.

14. For all these reasons the Tribunal cannot be said to have fallen into jurisdictional error in the way it dealt with this aspect of the facts, a matter traversed comprehensively.  Ground 2 is not made out.

Ground 3 - The Tribunal erred in failing to find that the applicant had on 14 October 2013 lodged a valid application

1. This ground has not been reduced to writing by the applicant, and, indeed, was only articulated as an application for leave to amend by adding a ground of application during oral submissions.  I have done my best to characterise it in the heading above.

2. Counsel for the applicant submitted that in attending on 14 October 2013 the applicant was attempting to make a valid application.  He discussed his intention to do so with the officer to whom he spoke.  It was submitted that notwithstanding that nothing was lodged at the time this constituted the commencement of an application.  This application was then subsequently perfected when the form was lodged on 18 October 2013. 

3. Counsel submitted that the decision of the Full Court of the Federal Court in Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 supported the proposition that an application can be commenced and subsequently perfected.

4. That is undoubtedly so (see per Spender J at [2], and Gyles J at [73]).  However, the factual circumstances in that case were radically different to those here.  As Spender J pointed out at [1]:

   “The application form of the appellant, at the time it was lodged, indicated "statement to follow" concerning enquiries as to matters relevant to whether Australia owes protection obligations to him. The promised statement was not supplied prior to the decision by a delegate of the Minister purporting to refuse Mr Yilmaz's application for a protection visa. It was, however, part of the material considered by the Refugee Review Tribunal…”

5. In that case the application was already lodged but ancillary material was still to be provided.  In this case the application was not lodged at all.

6. Counsel for the first respondent opposed the application to amend the application by adding Ground 3.  It was submitted that the matter had not been foreshadowed and was made only at the last moment.

7. Nonetheless, counsel made submissions addressing the proposed Ground in any event.  It was submitted that the application rests essentially on MFI-2.  It was pointed out that that accorded only the applicant’s “intention to apply for a student visa”.  The actual application was dated 15 October 2013.  Counsel submitted that the critical matter was the lodgement of the form which is dealt with by Regulation 2.07.  Counsel distinguished Yilmaz (as I have done above) and repeated that a fee must be paid for the application to be accepted (Mohammed v Minister for Immigration and Border Protection [2015] FCA 184 per Perry J at [21]-[28]).

8. I accept the force of that submission.

9. It is clear that the applicant did not lodge an application on the 14^th or even take such preliminary steps as might be said to commence his application.  So far as the documents reveal the matter, he expressed an intention to do so and he told the Tribunal he, in fact, did so either by posting his application on the 14^th (see paragraph 17 of the Tribunal’s decision, interpreted in the most beneficent way possible to the applicant – there is no actual assertion as to which date he posted it on), or posted it on the 15^th or later, that being the date that the form bears.

10. On any view of the matter, the applicant simply did not lodge an application on 14 October 2013. 

11. In the circumstances, the matter having been fully argued before me, it would be contrary to commonsense not to permit the applicant leave to amend his application by the inclusion of Ground 3.  The first respondent was fully able to argue the matter despite its very late notice.  For the reasons I have set out, however, the Ground has no merit. 

Conclusion

1. For the above reasons none of the applicant’s criticisms of the Tribunal’s decision are made out and the application will be dismissed with costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  23 July 2015